Senate Confirms Kagan for Court

By

Naftali Bendavid

Updated Aug. 6, 2010 12:01 a.m. ET

WASHINGTON—The Senate on Thursday confirmed Elena Kagan on a 63-37 vote to become an associate justice of the U.S. Supreme Court, with a handful of Republicans joining almost all Democrats in making her the fourth woman to serve on the high court.

Kagan Gets the Nod

Ms. Kagan answered questions from members of the Senate Judiciary Committee June 29. Alex Wong/Getty Images

A review of the court, from law schools to gender to appointments and previous jobs.

When the court's new term starts in October, Ms. Kagan, 50 years old, will join Justices Ruth Bader Ginsburg and Sonia Sotomayor as the first trio of women in the court's history.

Fifty-eight Democrats and independents, as well as five Republicans, voted for Ms. Kagan. Thirty-six Republicans and one Democrat, Sen. Ben Nelson of Nebraska, voted against her.

The five Republicans who supported Ms. Kagan were Sens. Susan Collins and Olympia Snowe of Maine, Lindsey Graham of South Carolina, Richard Lugar of Indiana and Judd Gregg of New Hampshire.

With the Senate vote, President Barack Obama continues to put his stamp on the top court, following last year's confirmation of Justice Sotomayor, another relatively youthful woman who could serve for decades.

Judiciary Committee, on the Record

Supporters hope Ms. Kagan, the administration's solicitor general and a former dean of Harvard Law School, will serve as a counterweight to Justice Antonin Scalia, whose fiery conservative opinions have long been a hallmark of the court. Neither Ms. Kagan nor Justice Sotomayor is expected to shift the court's ideological makeup, because both succeeded liberal justices—John Paul Stevens and David Souter, respectively. Ms. Sotomayor was confirmed last year by a 68-31 vote.

"Today's vote wasn't just an affirmation of Elena's intellect and accomplishments," Mr. Obama said after the vote. "It was also an affirmation of her character and her temperament, her open-mindedness and even-handedness."

He said Ms. Kagan understands that "behind the law there are stories—stories of people's lives as shaped by the law, and stories of people's lives that might be changed by the law."

Ms. Kagan, who watched the confirmation vote from the solicitor general's conference room at the Justice Department, will be sworn in Saturday by Chief Justice John Roberts in a private ceremony at the Supreme Court.

Ms. Kagan's confirmation battle at times shifted into a broader discussion on how much deference the Senate should give a president's top court picks. The votes in recent years have divided more along party lines than they once did, at least for relatively noncontroversial picks. The first woman on the court, Sandra Day O'Connor, was confirmed in 1981.

The debate over Ms. Kagan's confirmation unfolded against the backdrop of recent federal-court decisions on the hot-button topics of immigration, health care and gay marriage. All three cases are almost certain to end up at the Supreme Court, and judicial nominations and social issues could become a factor in the November congressional elections. The economy has eclipsed such issues recently.

"I think these opinions, and these serious constitutional issues that are bubbling up out there, definitely will make the appointment of federal judges a campaign issue this year, and probably even a bigger issue in the presidential election," said Sen. Jeff Sessions (R., Ala.), the top Republican on the Senate Judiciary Committee and a strong opponent of Ms. Kagan.

Ms. Kagan joins a court that is likely to resolve all three questions tackled by the lower courts: whether Mr. Obama's sweeping new health law is constitutional, whether states can enact tough immigration laws; and whether gays have a constitutional right to marry.

Party Lines

Supreme Court confirmation votes have become increasingly partisan

ENLARGE

AFP/Getty Images

The outcome of Ms. Kagan's confirmation battle had been clear for weeks, but that didn't quiet the debate over the nomination. Republicans used the fight to argue that Mr. Obama has been improperly expanding the role of government, and have warned that Ms. Kagan would rubber-stamp his actions.

Sen. Richard Burr (R., N.C.) said on the floor of the Senate Thursday, "The public has watched Washington's growing disregard for the Constitution and its limits on government power." He added, "I'm concerned that Ms. Kagan doesn't seem to understand the limits the Constitution places on the federal government."

Democrats criticized what they see as an activist Supreme Court headed by Chief Justice Roberts, overruling court precedents on campaign financing and gun rights. They said Ms. Kagan would serve as a counterweight against conservative activism.

Beyond that, the two sides clashed over Ms. Kagan's qualifications, with Republicans contending she is a political rather than legal figure. "My concerns have actually grown throughout the process, and I've come to conclude that the nominee is truly a person of the political left," Mr. Sessions told reporters.

ENLARGE

Elena Kagan appears before the Senate Judiciary Committee for her confirmation hearing on June 28.
AFP/Getty Images

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Republicans also complained that as Harvard law dean, Ms. Kagan restricted military recruiting on campus. The military's ban on gays serving openly in the Armed Forces ran afoul of the school's antidiscrimination policy, though Congress forbade universities from discriminating against military recruiters.

Such criticisms never gained traction, however, and with the Democrats' 59-41 advantage in the Senate, Ms. Kagan's path to confirmation was relatively smooth. Democrats emphasized the prominent positions she has held and the support she received from some conservatives, who praised her integrity and intellectual ability.

Sen. Patrick Leahy (D., Vt.), chairman of the Senate Judiciary Committee, said, "There was no one President Obama could nominate who would not be opposed by some," adding that "Solicitor General Kagan's legal qualifications are unassailable."

Some suspense had attended the decision of Sen. Scott Brown (R., Mass.), who represents Ms. Kagan's home state. Mr. Brown left his decision until the final hours, announcing in a statement that although she is "brilliant," her lack of experience as either a judge or courtroom lawyer was disqualifying.

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